A major justification plaintiffs advance for product liability is “that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them.” Restatement (Second) of Torts §402A comment c (1965). At least that is what they argue until their endless search for a deep pocket calls for a different outcome. When the product marketer is unavailable – whether by reason of bankruptcy, preemption, or simple lack of knowledge − that high-sounding Restatement justification goes out the window, as plaintiffs scramble looking for somebody else to sue.

In the prescription medical product context, the plaintiffs’ most serious current assault on the Restatement principle that manufacturers must warn about the risks of their products − and only their products − began after the Supreme Court recognized broad preemption of product liability claims against generic drug manufacturers in PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011). Plaintiffs almost immediately began proposing “innovator liability” theories, claiming that, because federal law mandated that generic drugs bear the same warnings as their branded reference drugs, branded manufacturers should be liable for warning defects in generic products. Such liability would directly conflict with Restatement §402A because the branded defendants are being “burdened” with liability for competing products from which they derived no benefit.

Read the full article at digitaleditions.walsworth.com